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Chris Hedges
Truthdig / Truthdig Op-Ed
Published: Tuesday 12 February 2013
Anyone detained under the NDAA can be sent, according to Section (c)(4), to any “foreign country or entity.”

The NDAA and the Death of the Democratic State

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On Wednesday a few hundred activists crowded into the courtroom of the Second Circuit, the spillover room with its faulty audio feed and dearth of chairs, and Foley Square outside the Thurgood Marshall U.S. Courthouse in Manhattan where many huddled in the cold. The fate of the nation, we understood, could be decided by the three judges who will rule on our lawsuit against President Barack Obama for signing into law Section 1021(b)(2) of the National Defense Authorization Act (NDAA).

The section permits the military to detain anyone, including U.S. citizens, who “substantially support”—an undefined legal term—al-Qaida, the Taliban or “associated forces,” again a term that is legally undefined. Those detained can be imprisoned indefinitely by the military and denied due process until “the end of hostilities.” In an age of permanent war this is probably a lifetime. Anyone detained under the NDAA can be sent, according to Section (c)(4), to any “foreign country or entity.” This is, in essence, extraordinary rendition of U.S. citizens. It empowers the government to ship detainees to the jails of some of the most repressive regimes on earth.

Section 1021(b)(2) was declared invalid in September after our first trial, in the Southern District Court of New York. The Obama administration appealed the Southern District Court ruling. The appeal was heard Wednesday in the Second Circuit Court with Judges Raymond J. Lohier, Lewis A. Kaplan and Amalya L. Kearse presiding. The judges might not make a decision until the spring when the Supreme Court rules in Clapper v. Amnesty International USA, another case in which I am a plaintiff. The Supreme Court case challenges the government’s use of electronic surveillance. If we are successful in the Clapper case, it will strengthen all the plaintiffs’ standing in Hedges v. Obama. The Supreme Court, if it rules against the government, will affirm that we as plaintiffs have a reasonable fear of being detained.

If we lose in Hedges v. Obama—and it seems certain that no matter the outcome of the appeal this case will reach the Supreme Court—electoral politics and our rights as citizens will be as empty as those of Nero’s Rome. If we lose, the power of the military to detain citizens, strip them of due process and hold them indefinitely in military prisons will become a terrifying reality. Democrat or Republican. Occupy activist or libertarian. Socialist or tea party stalwart. It does not matter. This is not a partisan fight. Once the state seizes this unchecked power, it will inevitably create a secret, lawless world of indiscriminate violence, terror and gulags. I lived under several military dictatorships during the two decades I was a foreign correspondent. I know the beast.

“The stakes are very high,” said attorney Carl Mayer, who with attorney Bruce Afran brought our case to trial, in addressing a Culture Project audience in Manhattan on Wednesday after the hearing. “What our case comes down to is: Are we going to have a civil justice system in the United States or a military justice system? The civil justice system is something that is ingrained in the Constitution. It was always very important in combating tyranny and building a democratic society. What the NDAA is trying to impose is a system of military justice that allows the military to police the streets of America to detain U.S. citizens, to detain residents in the United States in military prisons. Probably the most frightening aspect of the NDAA is that it allows for detention until ‘the end of hostilities.’ ” [To see videos of Mayer, Afran, Hedges and others participating in the Culture Project panel discussion, click here.]

Five thousand years of human civilization has left behind innumerable ruins to remind us that the grand structures and complex societies we build, and foolishly venerate as immortal, crumble into dust. It is the descent that matters now. If the corporate state is handed the tools, as under Section 1021(b)(2) of the NDAA, to use deadly force and military power to criminalize dissent, then our decline will be one of repression, blood and suffering. No one, not least our corporate overlords, believes that our material conditions will improve with the impending collapse of globalization, the steady deterioration of the global economy, the decline of natural resources and the looming catastrophes of climate change.

But the global corporatists—who have created a new species of totalitarianism—demand, during our decay, total power to extract the last vestiges of profit from a degraded ecosystem and disempowered citizenry. The looming dystopia is visible in the skies of blighted postindustrial cities such as Flint, Mich., where drones circle like mechanical vultures. And in an era where the executive branch can draw up secret kill lists that include U.S. citizens, it would be naive to believe these domestic drones will remain unarmed.

Robert M. Loeb, the lead attorney for the government in Wednesday’s proceedings, took a tack very different from that of the government in the Southern District Court of New York before Judge Katherine B. Forrest. Forrest repeatedly asked the government attorneys if they could guarantee that the other plaintiffs and I would not be subject to detention under Section 1021(b)(2). The government attorneys in the first trial granted no such immunity. The government also claimed in the first trial that under the 2001 Authorization to Use Military Force Act (AUMF), it already had the power to detain U.S. citizens. Section 1021(b)(2), the attorneys said, did not constitute a significant change in government power. Judge Forrest in September rejected the government’s arguments and ruled Section 1021(b)(2) invalid.

The government, however, argued Wednesday that as “independent journalists” we were exempt from the law and had no cause for concern. Loeb stated that if journalists used journalism as a cover to aid the enemy, they would be seized and treated as enemy combatants. But he assured the court that I would be untouched by the new law as long as “Mr. Hedges did not start driving black vans for people we don’t like.”

Loeb did not explain to the court who defines an “independent journalist.” I have interviewed members of al-Qaida as well as 16 other individuals or members of groups on the State Department’s terrorism list. When I convey these viewpoints, deeply hostile to the United States, am I considered by the government to be “independent”? Could I be seen by the security and surveillance state, because I challenge the official narrative, as a collaborator with the enemy? And although I do not drive black vans for people Loeb does not like, I have spent days, part of the time in vehicles, with armed units that are hostile to the United States. These include Hamas in Gaza and the Kurdistan Workers Party (PKK) in southeastern Turkey.

I traveled frequently with armed members of the Farabundo Marti National Liberation Front in El Salvador and the Sandinista army in Nicaragua during the five years I spent in Central America. Senior officials in the Reagan administration regularly denounced many of us in the press as fifth columnists and collaborators with terrorists. These officials did not view us as “independent.” They viewed us as propagandists for the enemy. Section 1021(b)(2) turns this linguistic condemnation into legal condemnation.

Alexa O’Brien, another plaintiff and a co-founder of the US Day of Rage, learned after WikiLeaks released 5 million emails from Stratfor, a private security firm that does work for the U.S. Department of Homeland Security, the Marine Corps and the Defense Intelligence Agency, that Stratfor operatives were trying to link her and her organization to Islamic radicals, including al-Qaida, and sympathetic websites as well as jihadist ideology. If that link were made, she and those in her organization would not be immune from detention.

Afran said at the Culture Project discussion that he once gave a donation at a fundraising dinner to the Ancient Order of Hibernians, an Irish Catholic organization. A few months later, to his surprise, he received a note of thanks from Sinn Féin. “I didn’t expect to be giving money to a group that maintains a paramilitary terrorist organization, as some people say,” Afran said. “This is the danger. You can easily find yourself in a setting that the government deems worthy of incarceration. This is why people cease to speak out.”

The government attempted in court last week to smear Sami Al-Hajj, a journalist for the Al-Jazeera news network who was picked up by the U.S. military and imprisoned for nearly seven years in Guantanamo. This, for me, was one of the most chilling moments in the hearing.

“Just calling yourself a journalist doesn’t make you a journalist, like Al-Hajj,” Loeb told the court. “He used journalism as a cover. He was a member of al-Qaida and provided Stinger missiles to al-Qaida.”

Al-Hajj, despite Loeb’s assertions, was never charged with any crimes. And the slander by Loeb only highlighted the potential for misuse of this provision of the NDAA if it is not struck down.

The second central argument by the government was even more specious. Loeb claimed that Subsection 1021(e) of the NDAA exempts citizens from detention. Section 1021(e) states: “Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” 

Afran countered Loeb by saying that Subsection 1021(e) illustrated that the NDAA assumed that U.S. citizens would be detained by the military, overturning two centuries of domestic law that forbids the military to carry out domestic policing. And military detention of citizens, Afran noted, is not permitted under the Constitution.

Afran quoted the NDAA bill’s primary sponsor, Sen. Lindsey Graham, R-S.C., who said on the floor of the Senate: “In the case where somebody is worried about being picked up by a rogue executive branch because they went to the wrong political rally, they don’t have to worry very long, because our federal courts have the right and the obligation to make sure the government proves their case that you are a member of al-Qaida and didn’t [just] go to a political rally.”

Afran told the court that Graham’s statement implicitly acknowledged that U.S. citizens could be detained by the military under 1021(b)(2). “There is no reason for the sponsor to make that statement if he does not realize that the statute causes that chilling fear,” Afran told the judges.

After the hearing Afran explained: “If the senator who sponsored and managed the bill believed people would be afraid of the law, then the plaintiffs obviously have a reasonably objective basis to fear the statute.”

In speaking to the court Afran said of 1021(e): “It says it is applied to people in the United States. It presumes that they are going to be detained under some law. The only law we know of is this law. What other laws, before this one, allowed the military to detain people in this country?”

This was a question Judge Lohier, at Afran’s urging, asked Loeb during the argument. Loeb concurred that the NDAA was the only law he knew of that permitted the military to detain and hold U.S. citizens.

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ABOUT Chris Hedges
Chris Hedges is a weekly Truthdig columnist and a fellow at The Nation Institute. His newest book is “The World As It Is: Dispatches on the Myth of Human Progress.”

The government's "arguments"

The government's "arguments" here strike me as almost silly, insincere and careless, the arguments of one merely going through the motions, knowing the fix is in, who cannot lose. I suspect you're playing Whack-a-Mole here Mr Hedges. Nonetheless, I greatly admire you for it.

What will it take to get

What will it take to get Americans off the couch?

Trish House's picture



Whitemelon: Monetary meltdown

Whitemelon: Monetary meltdown via hyperinflation. It's not far off.

This is exactly why the

This is exactly why the authors of the Bill of Rights included the Second Amendment. They despised the idea of a standing army, and favored a militia--comprised of every able-bodied man in the Union. They also knew that an armed citizenry was the last defense against tyranny.

How can anyone read this article and not want to assume responsibility to defend what's left of the Democracy?

(If you disagree, and all you can do is fling insults at me, don't fool yourself into thinking you're making a valid point.)

The issue at stake is very

The issue at stake is very serious, but accuracy demands that we describe and label it correctly.

Contra the title, the issue is NOT a 'democratic' state. The USA has never been a 'democracy' in the reasonable Athenian sense: all citizens have equal rights to participate in making public decisions. Instead the USA and almost all of its various subjurisdictions have at most been Roman-republican style political oligarchies, with a populist veneer supplied by periodic but infrequent elections to choose oligarchs. (The Athenians restricted citizenship unduly, but even so their citizens formed a far greater proportion of the population than ever have our political-officer oligarchies.)

The issue however IS a LIBERTY-respecting state, one which respects at least the basic liberties noted in the US Federal Constitution's Bill of Rights amendments. For 200 years we USA citizens have tolerated (wrongly, in my opinion) political oligarchy, but only because our governments are supposed to respect and be committed to our basic liberties.

U.S. citizens who are enemy

U.S. citizens who are enemy combatants on foreign soil fighting against the U.S., is a treasonous act, and I beleive the law still allows hanging as punishment for this crime. Why do we need all the technical circumstances as provided or called for by the NDAA. This article indicates that the captured individual could be held until the end of the conflict. It further states that since we are in a constant state of conflict that the individual could be held forever. What is the logic in holding someone for a treasonous act in one conflict and continuing to hold them for the duration of an unassociated conflict somewhere else in the world, as indicated here? There will always be conflicts somewhere as long as there is KBR and the other profiteers of the "military industrial complex",

Leddy.... to respond to your

Leddy.... to respond to your query (I hope);

..... What is the logic in holding someone for a treasonous act in one conflict and continuing to hold them for the duration of an unassociated conflict somewhere else in the world, as indicated here?......

The problem with NDAA is that it makes no distinction about "where" a war is and in the case of the "war" on terror, it seems to be wherever the government deems it to be which can include within US borders, or anywhere on the globe. Clearly the logic of holding someone indefinitely is to quash any prospective idealists that would follow their example. There is a corollary to this logic; it supplies the prison/industrial complex with a commodity for it's incarceration machinery.

We need reach no further than the roundup of American Muslim "suspects" in the wake of 9/11. Few charges were ever brought. None that I ever heard about were for collaboration with al Qaeda, yet, quite a few were detained for months without trial and in some cases without indictments. With the overt militarization of our society, there is no reason to believe that even that legal nicety would be allowed.

I will concur heartily though on your final point ....... So long as there are war profiteers, there will be wars. Modern wars are ALWAYS about resources.

HSBC laundered billions of

HSBC laundered billions of dollars of drug cartel and terrorist organizations' cash giving material support to terrorists after initially lying to federal investigators about it, and they aren't the least bit worried about being criminally prosecuted for it.

Obama has militarize the police and deputized the military to make sure that anyone publicly complaining about it or any other blatantly criminal act perpetrated by Obama's "savvy businessmen" buddies pays a dear price.

Good luck Chris. There is one

Good luck Chris. There is one abiding thought that keeps sanity alive in these dark times, and I am told that for a man with my education and Intellect these next words seem out of context. Most people either believe in the Almighty or do not. Some doctors no longer believe in certain procedures, because they have witnessed the reality face to face of the efficacy of those , now they are no longer believers they are KNOWERs of the truth.

Knowing comes not through simple “belief” but as St. Thomas did by seeing what others, even priests, ministers and rabbis have never seen the reality of an entity greater, larger, than the largest Black Hole.

I have seen that entity time and time again over a lifetime. The "rewards" of these corrupt creatures which allow them to sell their souls, those men and women whose lifetime here, all of which are short in comparison to eternity, in which they may bask in the ill gotten gains of that lifetime, eventually are meaningless, but as I said life, even the longest is short, while HELL is forever. Then and only then we shall see who has won, and then know, not believe.

Capitalist Empire elites have

Capitalist Empire elites have already succeeded in gaining public support for a perpetual-war policy. Half of all military spending worldwide is the USA's.
Bear in mind that this is not a Goldwater or Bush administration advancing militarization, Homeland Security and NDAA, but that of a "centrist Democrat". In other words, the duopoly is in lock-step.

Imagine a sequence in the easily foreseeable future:
USA launches airstrikes against Iran's nuclear program. Iran and jihadists elsewhere retaliate. Oil shipments are disrupted. Gas prices sky-rocket, rationing is imposed, 25% of USA employees are unable to get to work on a regular basis. The economy is rapidly collapsing. Then several refinery complexes and USA port cities are plane-bombed or dirty-bombed, ie a succession of Sept 11 events. A military draft of 1 million is announced. Hacker-terrorists disrupt energy grid and financial system. Corporate media repeat neo-con Congressional howls for use of nukes and policing of internet. Govt announces state of emergency, giving Homeland Security unlimited power. Imagine this or something less dire as the context for NDAA. (Consider all that followed just from Sept 11.) You should imagine it because that is what the capitalist Empire elites and duopoly are planning for, a dictatorial military police state imposed when the elite declare an emergency. An emergency they can create at will. Once a dictatorial military police state is imposed, the elite will make it permanent, and increasingly totalitarian.

Tonite, just two weeks after having Panetta announce women will be granted combat roles (more cannon fodder is needed for volunteer army), Obama will announce withdrawal of 34,000 troops from Afghanistan. Never mind how many years that war has been conducted and how long it will yet be waged. This is to create the illusion of an intermission. In reality it is only the precursor to the next deployment, and the next deployment could easily occasion "the emergency".

All the power to you, Chris!

All the power to you, Chris! This is as basic of Constitutional freedoms as they ever can possibly be. Power corrupts and no one knows that better than the "bullies in the playpen." This type of infantile power-play, is a toxic blight on the entire Republic.

Keep up the great work, Chris!

Boris Badenov's picture

and to think they were called

and to think they were called freedom fighters by the Reagan Administration.

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